


^u^^^ r^ 


























>• V'^^-'*°' *<i.*^>\/ %*^^*/ *^^".,.- 
\...** .-iSSfcji-. **,.♦* .-^1^*, %.J^ /MS^'- **..** 




%PV 

















o5 "ti) 



i-'V. 



^o 










o • » 



:- '^ov* 



3^ • 




^ - • • • AV 



%*T^'/ *^^*^^\/ %^^-/ \-^^v 



%.** .• 












o*9 





0^ ..V'.'./^O. 




OPINION 



/T^t^^^ i^^^^e--^-^^^ 



OF 



, 1 1^ 



HON. GAERETT DAYIS, 

OF KENTUCKY, 

Filed under the order of the Senate sitting as a Court of Impeachment for the Trial of 
Andreio Johnson, President of the United States. 

i - -■' 



The subject of impeachment is provided for 
in the Constitution by several clauses, which I 
will quote : 

" The House of Representatives shall have the sole 
pow«r ol' iuipeachtnetit." 

"The Senate shall have the sole power to try all 
IrapcachinentSy When sitting for that purpose they 
shall be ou oath or affirmation. When the President 
of the United States is tried the Chief Justice shall 
preside; and no person shall ha convicted without 
the concurrence »f two thirds of the members pres- 
ent." 

" The President, Vice President, and all civil oflB- 
cers of the United States, shall be removed from 
office on impeachment for and conviction of treason, 
bribery, or other high crimes and misdemeanors." 

" Juiigment in cases of impeachment shall not ex- 
tend further than to removal from office and disqual- 
ification to hold and enjoy any office of honor, trust, 
or profit under the United States; but the party con- 
victed shall, nevertheless, be liable and subject to 
indictment, trial, judgment, and punishment accord- 
ing to law." 

Our system of impeachment has not been 
transferred from any other Government, nor 
was its orf^anization confided to Congress; but 
the cautious statesmen who founded our Gov- 
ernment incorporated it in and built it up as 
part of the Constitution itself They enumer- 
ated its essential features and made it sui gen- 
eris. 1. No person but civil officers of the 
United States are subject to imjjeachment. 2. 
The Senate is constituted the court of impeach- 
ment. 8. The Chief Justice of the United 
States is to preside over the court when the 
President is under trial, and the Vice President 
or President pro tempore of the Senate in all 
other cases. 4. No conviction can take place 
unless two thirds of the Senators present con- 
cur. 5. No impeachment can be made but for 
treason, bribery, or other high crimes and mis- 
demeanors against the United States. G. Judg- 
ment of impeachment cannot extend to death 
or other corporal punishment, or fine or im- 
prisonment; but is restricted to removal from 
and disqualification to hold office; but the 
party convicted, nevertheless, to be liable and 
subject to indictment, trial, judgment, and pun- 
ishment according to law. The offenders, of- 
fenses, court, and punishment are all distinctly 
impressed with political features. 

But the prosecution has assumed two strange 



and untenal)]e positions in the course of this 
trial. 1. That the Senate, in the performance 
of the present most important office and duty, 
is not a court. It is certainly not a legislative 
body, nor exercising legislative powers; it is 
not an advisory. council connected in a com- 
mon function with the President. What, then, 
is it ? Most of the States had previously to the 
formation of the Constitution organized their 
several tribunals to try cases of impeacliment, 
and by some they had been denominated courts 
of impeacliment, and all had invested them 
with the powers and attributes of courts. They 
were universally held to be courts. 'J"he Con- 
stitution invests the Senate with the so/e power 
to try all impeachments. To try is to examine 
a case judicially by the rules of law, and to 
apply them to the legal evidence taken in the 
trial, and to render the judgment of the law 
upon the claims of the parties according to the 
evidence. The phrases '"to try," "tried,'" 
" convicted," " conviction," and "judgment" 
are all used in the Constitution in connection 
with impeachment and the proceedings in it. 
Those words, in connection with their context, 
establish, organize, and describe a court; and 
as applied to the Senate necessarily constitute 
it a court with jurisdiction to try all cases of 
impeachment. 

The Senate now and for this occasion is a 
court of impeachment for the trial of the Pres- 
ident of the United States, and, like all other 
courts, is bound by the law and the evidence 
properly applicable to the case. 

The other novel position of the prosecution, 
that on this trial the Senate " isa law to itself," 
is still more extraordinary. The power con- 
ferred by the Constitution on the Senate when 
trying impeachments is limited and wholly 
judicial, and the idea of combining with it any 
legislative power whatever is not only without 
any warrant, but is in direct hostility to the 
fundamental principle of our Government, 
which separates and makes mutually impassa- 
ble all its legislative and judicial power. But 
the position that the Senate, when trying an 
impeachment, is "a law to itself," is bound 
by no law, may decide the case as it wills, is 



'^A ^A^. 






illimitable and absolute in the performance 
of special, restricted, judicial functions in a 
limited government, is revoltingly absurd. On 
the trial of any impfachment the Senate has 
no more authority to make or disregard law 
than it has to make or disregard facts: and it 
would be as legitimate and jiroper and decor- 
ous for the Managers, in rt;lation to the evi- 
dence in this case, to announce to the Senate, 
"You are witnesses to yourselves" as "You 
are a law to yourselves." No court has any 
right or power to make or disregard either law 
or evidence in the trial of any case; and a 
court which would act upon and avow that 
rule of conduct would be execrated by man- 
kind. There is a particular and empliatic con- 
trary obligation on this court, for each one of 
its members has individually made a solemn 
appeal to Cod "that in all things appertain- 
ing to the trial of the impeachment of Andrew 
Johnson, President of the United States, now 
pending, he will do impartial justice accord- 
ing to the Constitution and the laws." 

One of the leading and inflexible laws which 
bind this court is embodied in the Constitution 
in these words: 

"No person shall be removed from office but on 
imiiertchment for and conviction of treason, bribery, 
or other high crimes and misdemeanors." 

That is the category of all impeachable of- 
fenses, and they must be acts declared by t lie law 
of the United States to be treason or bribery, 
or some other offense which it denominates a 
" hij^h crime or misdemeanor." The laws 
which define impeachable offenses may be the 
Constitution, or acts of Congress, or the com- 
mon law, or some other code, if adopted either 
by the Constitution or act of Congress. No 
common- law offense, as such merely, can sus- 
tain the impeachment of any officer; but to 
have that authority, it must have become a part 
of the law of the United States by being adopted 
by the Constitution or some act of Congress, 
and would have operation and effect only to the 
extent that it was consistent with the provis- 
ions, principles, and general spirit of the Con- 
stitution. 

No respectable authority has ever main- 
tained that all offenses merely against the 
common law, or merely against public morals 
or decency were impeachable under our Con- 
stitution. Story has argued, in support of the 
position, that some offenses against the com- 
mon law, and not made so by act of Congress, 
are impeachable; but he states his premises 
so generally and vaguely that it is impossible 
to obtain a full and clear comprehension of 
his meaning. He neither asserts the broad 
propositioti that alt common-law offenses are 
impeachable, nor does he attempt to define or 
descriije generally those that are ; but contents 
himself with the position, vaguely and hesitat- 
ingly taken and maintained, tiiat tliere are com- 
mon-law offenses wiiich are ofVenses against the 
United States and which are impeachable ; but 
how or where or by what language of the Con- 
stitution, or law of Congress they become of- 



fenses against the United States he does not 
attempt to show. But he distinctly admits 
that to be impeachable the offense must be 
against the United States. 

The idea of jirosecuting and punishing an 
act as an offense, which no law has made ati 
offense, all must reject. Treason, hribery, high 
crime';, and misdemeanors are technical terms, 
found in the common law, and that express 
certain classes of offenses. But the common 
law, in whole or part, is not necessarily, or 
per se. the law of the United States, and to 
become so must be adopted by the Constitu- 
tion or an act of Congress, and not otherwise. 
There is no provision or words in the Consti- 
tution which expressly or by implication adopts 
the common law. When it was before the 
conventions of the States on the question of 
their ratification of it, that it did not adopt the 
common law was frequently and strenuously 
objected to, especially in the convention of 
Virginia; and no one denied the truth of that 
position. The courts, Federal and State, and 
the profession generally, have up to the pres- 
ent time held that there is no adoption of the 
common law by the Constitution of the United 
States, and there never has been any by act 
of Congress. 

But this precise question has been decided 
by the Supreme Court in the negative, and 
more than once. Hudson & Goodwin were 
indicted under the common law, in the circuit 
court of the district of Connecticut, foralibel 
against the Government of the United States ; 
and the case was taken up to the Supreme 
Court, which decided without any announced 
difference of opinion among its members, and 
with the full approbation of I'inckney, Attorney 
General, that the courts of the United States 
have no common law jurisdiction in cases of 
libel or any other crimes against the United 
States ; but, that b}* the principles of general 
law, they have the power to fine for contempt, 
to imprison for contumacy, and to enforce tiie 
observance of their orders, &c.; that the legis- 
lative authority of the Union must first make 
an act a rrme, afSx a punishment to it, and 
decliire the court that shall have jurisdiction. — 
(7 Cranch, 32.) 1'lie court, in the case of the 
United States vs. Coolidge, (1 Wharton, 41;'),). 
being an indictment under the common law, 
for rescuing a prize at sea, recognized the 
authority of the previous case, and dismissed 
the indictment. Judge Story sat in both cases, 
and was the only judge who expressed a dissent 
in the latter case from the ruling of thatcourt. 

The common law, in whole or part, has been 
adopted by the constitutions or statutes of most 
of the States; but in I^ouisiana it has never 
been made to supersede the civil law, nor the 
Partidiis in Florida. The courts of the United 
States recognize and adopt, not the criminal, 
but the civil portion of the common law, gen- 
erally to the extent to which it has been ap- 
propriated by a State, in all cases arising in that 
State within their jurisdiction ; but not as the 
common law, norasthe lawofihe United States, 



but as the law of the particular State. In i 
States that have not ap[)ropriate(l the common 
law in whole or part, the United States courts 
adopt such other law generally as they have ' 
established for the government of cases arising 
in them resiiectively. But this adoption by the ' 
courts of the United Slates of the laws of the j 
States never extends to crimiiuil or ppual cases, j 
but is restricted to those of a civil nature. No 
State ever executes in any form tlie penal laws • 
of another State, and the United States only j 
their own penal laws, and they exist in no other | 
form than acts of Congress. I 

The State of Maryland adopted the common ■ 
law, and on the orgatiization of the District of ! 
Columbia, Congress recognized and continued 
the laws of that State in so much of it as had 
been ceded by Maryland. But the laws so 
adopted b}' Congress were local to ihe Mary- 
land portion of the District; they did not ex- 
tend to the part of it ceded by the State of 
^'^irginia, in which Congress adopted and con- 
tinued in the same way the laws of Virginia. 
As the laws of each State are local and dis- 
tinctive, so are the laws of ]\Iaryland and 
Virginia which were adopted by Congress for 
the District of Columbia on its organization, 
local aad distinctive to the portions of the 
District that were ceded by those States re- 
spectively. 

Treason, bribery, and other offenses of the 
nature of high crimes and misdemeanors, to 
be impeachal)le, must be crimes against the 
general law of the United States, and punish- 
able in their courts of the localities where 
committed. Thus, treason against the United 
* States is an impeachable offense, whether it be 
committed in any State or Territory, or the 
District of Columbia; and so of any other act 
to be impeachable, it must be an offense by the 
laws of the Uuiied States, if perpetrated any- 
where within its boundary. That an act done 
in the portion of tliis District, ceded by the 
State of Maryland, would be an impeachable 
offense, and a siu)ilar act done in any place 
beside in the United States, would not be im- 
peachable, is sustained by neither law nor 
reason. Such an offense would be against the 
District of Columbia, not against the Unite:! 
States. The law of inipeacliment is unirorni 
and general, not various and local, and it has 
no phase restricted to the District of Columbia 
as has been assumed by the prosecution. 

Then, besides treason and Ijriljery, which 
are impeachable by the Constitution, to make 
any otiier act an impeachable offense it must 
not only be defined and declared to be an of- 
fense, but it must be stamped as a high crime 
or misdemeanor by an act of Congress. The 
words " high crimes and misdemeanors" do not 
define and create any offense, but express, 
generally and vaguely, criminal nature ; and 
of themselves could not be made to sustain an 
indictment or other proceeding for any offense 
whatever; but a law must define an offense, 
and afK.K one of those terms to it, to tnake it 
a constitutional ground of impeachment^ And 



i^is is not all; the offense in its nature must 
have the type of heinous moral delinquency, 
or grave political viciousness, to make ari' 
officer committing it amena!)le to so weighty 
and unfrequent a responsibility as impeach- 
ment. He may have been guilty of a viola- 
tion of the Salifiath or of profane swearing, 
or of breaches of tiie mere forms of law: and 
if they had been declared offenses by act of 
Congress, with the prefix of " high crime" or 
"high misdemeanor" attached to them, they 
would not be impeachable offenses. They 
would be too trival, too much wanting in weight 
and State importance to evoke so grave, so 
great a remedy. Nor would any crime or 
offense whatever against a State, or against 
religion or morality, be a cause for impeach- 
ment, unless such an act had been previously 
declared by a law of Congress to be a high 
crime or a high viisdeineaiior, and was in its 
character of deep turpitude. 

it results from this view of the law of im- 
peachment that, ^s none of the articles against 
the President charge him with treason or brib- 
ery, which are made impeachable offenses by 
the Constitution, they, or some one of them, 
must allege against him the doing of an act or 
acts which a law of Congress has declared to 
be an offense against the United States, and 
denominated it to be, and in its vicious nature 
it must be, a high crime or high misdemeanor, 
and that the President did that act with a 
criminal intent to violate the law, to authorize 
this court to convict him and ju-onounce judg- 
ment that he be removed from office. 

I will now proceed to the examination oCthe 
offenses charged in the several articles. i^The 
first charges the President with the comnfission 
of a high misdemeanor in having sent a letter 
to Edwin M. Stanton, Secretary of the De- 
partment of War, dismissing hiin from office 
while the Senate was in session, in violation of 
the act of Congress "to regulate the tenure 
of certain civil ofhces. " 

Article two charges the President with the 
commission of a high misdemeanor, in having 
delivered his letter to Lorenzo Thomas direct- 
ing him to assume possession of the War De- 
partment, and to perform its duties ad interim, 
the Senate being then in sessi(ui, and without 
its advice and consent, there being no vacancy 
in the office of Secretary of the Department 
of War, in violation of his oath of otfice. the 
Constitution of the United States, and the act 
of Congress aforesaid. 

Article four charges the President of unlaw- 
fully conspiring with Lorenzo I'homas, with 
intent, by intimidation and threats, to prevent 
Edwin M. Stanton, Secretary of War, from 
holding said office, in violation of the Con- 
stitution of the United States and the "act 
to define and punish certain conspiracies," 
whereby he committed a high crime in ottice. 

Article six charges the l-'resideut of having 
conspired with Lorenzo Thomas, l>y force, to 
seize, take, and possess tlie pro])erty of the 
United States, in the Department of War, in 



violation of the civil office tenure act, whereby 
he committed a high crime in office. 

The third, tit'th, seventh, and eighth articles 
charge the same matter, in somewhat different 
form, as is embodied in the other four articles; 
and I propose to consider the charges of the 
whole eight as growing out of the act of the 
President in sending his letter to Stanton 
removing him from the office of Secretary of 
War, and his letter to Thomas to take charge 
ad interim of it. Those two letters compre- 
hend the substance of all the offenses charged 
against the President in the first eight articles. 

The ninth article charges the President, as 
Commander-in-Chief of the Army, of having 
attempted to induce General Emory, an army 
officer, to disobey the law of Congress requiring 
army orders from the President, or Secretary 
of War, to be transmitted through the General 
of the Army, and was guilty thereby of a high 
misdemeanor in office. 

To this article three answers may be made : 

1. The act does not make an attempt to in- 
duce a military officer to disobey it, whether 
committed by the President or other person, 
any offense. 

1. The evidence not only does not sustain, but 
disproves that charge against the President. 

3. If the charge had been sustained by the 
proof, the President, as Commander-in-Chief, 
has the absolute and unquestionable right to 
issue military orders directly, and without the 
intervention of another officer, to any officer 
or soldier whatever ; and the provision of the 
act on which tliis article is based, is an un- 
constitutional and llagitious attempt by Con- 
gress to subordinate, in a measure, the Com- 
mander-in-Chief to the General of the Army. 

The tenth article is based wholly on pas- 
sages taken from several public speeches made 
by the President, not in his official character 
but as a private citizen, to assembled crowds 
of the people, by whom he was called out and 
urged to address them. Whatever of improper 
matter, manner, or spirit are in those public ad- 
dresses was provoked by gross insults then of- 
fered to him, which, though not a justification, is 
much palliation. The Presidentwas then exer- 
cising a right which our fathers held inviola- 
ble, and which they intended should never be 
invaded, and for the protection of which they 
made this special amendment to the Consti- 
tution : 

"Congress shall make no law abridging the free- 
dom of speech or the press." 

For the Senate, as a court of impeachment, 
to set up to be "a law to itself," and impeach 
the President as guilty of a high crime and 
misdemeanor for exercising a liberty which 
the founders of our Government deemed so 
valuable, so necessary to the preservation of 
their freedom, as to declare in their funda- 
m.ental law should never be abridged, would 
violate that fundamental law and shock the 
free spirit of America. The basing of an 
article of impeachment on those speeches of 
the President, is calculated to bring down upon 



the whole proceeding the suspicion and revul* 
sion of a I'reo people, and it ought to be dis' 
missed from this court as containing no im- 
peachable matter. 

The eleventh article charges that Andrew 
Johnson, Presii'ent of the United States, v/as 
guilty of a hig!i misdemeanor in declaring 
and affirming in substance " that the Thirty- 
Ninth Congress of the United States was not a 
Congress of the United States authorized by 
the Constitution to exercise legislative power 
under the same, but, on the contrary, was a 
Congress of only part of the States." This is 
not the language proved in the case to have 
been used by the President on any occasion ; 
and if he had used it, he could not be impeached 
for it, because there is no law which makes 
the use of such language by the President, or 
any person, a high crime or misdemeanor or 
any offense, and any act of Congress declaring 
it to be an offense would be unconstitutional 
and void as abridging the freedom of speech. 
This article also charges — 

" That thesaid Andrew Johnson, President of the 
United States, did, unlawfully and in disregard of the 
requirement of the Constitution that he should take 
care that the laws he faithfully executed, attempt to 
prevent the execution of an act entitled 'An act 
regulating the tenure of certain civil offices,' by 
unlawfully devising and contriving means by which 
he should prevent Edwin M.Stanton from forthwith 
resuming the func'ions of the office of Secretary for 
the Department of War. notwithstanding the refusal 
of the Senate to concur in the suspension theretofore 
made by said Andrew Johnson of said Edwin M. 
Stanton from said office." 

To this charge it may be answered — it is 
made in terms too general and vague to require 
any answer — that the unlawful means which 
the President devised and contrived to prevent 
Edwin M. Stanton from forthwith resuming the 
functions of the office of Secretary of War, are 
not described or set out by any language what- 
ever ; and that act or any law of Congress does 
not make the devising or contriving of any 
means to prevent Edwin M. Stanton or any 
other civil officer whom the President has re- 
moved from office, and in whose removal the 
Senate has refused to concur, from resuming 
the duties of the office from which he has been 
so removed, a high crime or misdemeanor, or 
any offense ; and said civil-otfice-tenure bill,, 
so far as it restricts the President's power to 
remove s^id Stanton, is not consistent with, 
but in derogation of, the Constitution, and null 
and void. 

And the eleventh article charges also that 
Andrew Johnson, President of the United 
States, devised and contrived other unlawful 
means to prevent the execution of an act en- 
titled "An act making appropriations for the 
support of the Army for the fiscal year ending 
June 30, 1868, and for otiier purposes;" and 
also to prevent the execution of an act enti- 
tled "An act to provide for the more efficient 
government of the rebel States. " Upon this 
last charge it ma}' be observed — there is no 
description or facts setting out the means 
which the President devised and contrived to 



5 



prevent the execution of either of the acts 
therein referred to — that the devising and con- 
triving means to prevent the execution of said 
acts, or either of them, is not made a high 
crime or misdemeanor by them, or any law ; 
that there is no evidence tiiat he did devise and 
contrive any means to prevent the execution of 
said acts, or either of them ; and that the act 
-first referred to, in the part which the Presi- 
dent is charged to have violated, and the last 
act, wholly, are unconstitutional, null, and 
void. Thus, it is shown on these several 
grounds, that there is nothing in the eleventh 
article on which the President, can be im- 
peached. 

Some of the articles charge the President 
with the commission of liigh misdemeanors, 
and others of high crimes in the violation of 
his otticial oath and of the Constitution gen- 
erally. The Constitution has no provision 
declaring a violation of any of its provisions 
to be a crime ; that is a function of the legis- 
lative power, and it has passed no law to make 
violations of the Constitution, or of otHcial 
oaths by the President, or any other officers 
crimes. 

Thearticlesof impeachment seem to be drawn 
with studied looseness, duplicity, and vague- 
ness, as with the purpose to mislead; certain 
it is, if their matter charged to be criminal 
bad been separately, concisely, and distinctly 
stated, this court, and especially its many mem- 
bers who are not lawyers, would have had a 
much more ready comprehension of it. I will 
not take up and consider the other articles 
seriatim, but will group their matter under 
three heads : 1. 'J'he removal of Mr. Stanton 
from the office of Secretary of War ; '2. the des- 
ignation of General Thomas to take charge of 
that otfice ad interim; 3. the alleged conspi- 
racies of the President with Thomas to pre- 
vent by intimidation and i'orce Stanton from 
acting as Secretary of War, and to take pos- 
ses.sion of the property of the United States 
in his custody. The letter of the President to 
Mr. Stanton, informing him that he was thereby 
removed from othce as Secretary of War, is 
charged to be a high misdemeanor, and in vio- 
lation of the act to regulate the tenure of cer- 
tain civil otiices. 

The fifth and sixth sections of that act are 
the only parts of it which define and create any 
offenses, and I will quote them both in their 
order: 

/ "If any person shall, contrary to the provisions of 
■> this act, accept any appointment to. or eiiii'loyment 
in any office, or shall hold or exercise, or attt'iupt to 
hold or exercise any such office or cinployinent. he 
shall be deemed, and is hereby declared to be guilty 
of a high misdemeanor," &.o. 

This provision might apply to General 
Thomas, the ad interim employe, but cannot 
include the President. 

The sixth section enacts — 

" Thatevery removal, appointment, or employment 
made, had, or exercis. d, contrary to the provisions 
of this act, and the making, signing, scaling, coun- 
tersigning, or issuing of any commission or letter of 
authority for or in respect to jiny such ai)pointment 



or employment, ."shall be deemed, and hereby are 
declared to be, high misdemeanors," -Ate. 

The President's letter to Mr. Stanton is not, 
in fact, his removal from office, though it was 
intended to procure it; but he refused obedi- 
ence to it, persisted in holding the office of 
Secretary of War, and still continues in it and 
the actual discharge of its duties. The Presi- 
dent's letter to him did not remove him in fact, 
and if the civil-office-tenure act be constitu- 
tional it did not in law ; and he is now. and has 
been ever since, notwithstanding the Prcsidetit's 
letter, dismissing him, in fact and law, iii office. 
It is contended by the prosecution that the 
letter of dismission is against the Constitution 
and the law, and has no legal effect wh.'itever. 
Stanton was at its date in fact in possession of 
the office and performing its duties, and has so 
continued to the present time, and on this 
theory of the prosecution there has l)een no 
removal of him in fact or in law. And if that 
theory be unsound, and the President have the 
power by the Constitution to remove him, and 
the act of Congress proposing to restrict that 
power is consequently void, his removal was 
and is de jure valid. In one aspect there is a 
removal proper and constitutional; in the other 
there is no removal of Mr. Stanton. 

But these are tiie great questions in the case ? 
Is the first section of the civil-officetenure 
act in cotiflict with the Constitution, void, and 
of no effect ? Does that section cover the 
case of the removal of Mr. Stanton? I>id the 
President, in writing the letter of removal from 
office to Mr. Stanton, and the letter to General 
Thomas, directing him to take charge of the 
office ad interim, willfully and with criminal 
intent violate the civil-office-tenure bill? These 
propositions comprehend thesubstance matter 
of the first eight articles. 

The first section of that act is in these words: 

"That every person holding anj' civil olfice to 
which he shall have been appointed by and with the 
advice and consent of the Senate, and every person 
who shall hereafter be appointed to any such office, 
and shall become duly qualified to act therein, is, and 
shall be entitled to hold such office until a successor 
shall have been in like manner appointed and duly 
Hualificd. escei)t as hereinafrer provided : l'iiio\ili:il, 
Thatthe Secretary of State, of theTroasury, ot War, 
of the Navy, and of the Interior, the I'ostniasttr 
(ieneral and the Attorney General shall hold their 
offices res|)ectively lor and during the term of the 
President by whom they rnay^have been ai^pointcd. 
and for one month thereafter; subject to removal by 
ami with the advice and consent of the Senate." 

The Constitution creates a Cong"ress in which 
it vests all the legislative power of the (ioverii- 
ment of the United States; a President in 
whom it vests all the executive power, and a 
■Supreme Court, and authorizes inferior courts 
to be established by Congress, in which it vests 
all the judicial power — except that it provides 
that the Senate shall constitute a court of im- 
peachtnent, with jurisdiction to try all civil 
officers who might be impeached by the House of 
liepresentatlves. and to adjudge amotion from 
and disqualification to hold office. iNeiilic-r 
department can rightfully, or without usurpa- 
tion exercise any powers which the Constita- 



6 



tion lias vested in oitlior of the other depart- 
ments. Congress has the power, and is bound 
in duty to pass all laws necessary and proper 
to enable the President to execute the powers 
intrusted to him by the Constitution, and with- 
out wliich le,i(islation there are many he could 
not execute, but it cannot confer on him any 
additional power, nor can it divest him of any. 
He forms a separate and coiirdinate depart- 
ment of the Government with Congress as 
another, and the courts as the third, and each 
derive ail their powers from the Constitution 
alone. Neither is subordinate to the others, 
though the powers vested in Congress are the 
most various, extensive, vigorous, and popu- 
lar, and necessarily it is the most aggressive 
and etlective in its aggressions upon the other 
departments; the judiciary is the least so, 
though the inevitable tendency of all power, 
however lodged, is to augment itself. 

The power of appointment to office exists 
necessarily in all Governments, and is of an 
executive nature ; and if the Constitution had 
contained no particular provision on this subject 
its language, '' the executive power shall be 
V(?sted in a President of the United States of 
America,'" would have imported the power of 
appointing to office, a«d by implication would 
have vested it wholly in the President. But 
the eflPect of this general language is qualified 
by a special provision: 

" And he [the President] shall nominate, and by and 
with the advice and consent of the Senate shall ap- 
point, embassadors," &c. 

This is restrictive and exceptional of the gen- 
eral power of ajjpointment, previously by im- 
plication conferred on the President, and has 
no other operation than what is expressed in 
it3words,and they beingexceptional noimplied 
power results from them against the general 
grant of power from which they make an excep- 
tion. But the power of removal from office 
also, as necessarily as the power of appoint- 
ment, exists in all Governments, and is no less 
an executive power. It is located somewhere 
in the Government of the United States, but 
being an executive power it cannot be in Con- 
gress, for legislative powers only are vested in 
that body. It is not established, or vested by 
any express or special provision of the Consti- 
tution, but is by the general language: 

"The executive power shall be vested in a Presi- 
dent of the United States of America." j 

The Constitution leaves the power of re- j 
»Ho^•a/just as this general provision vests it, with 
the President alone. . The power of Congress 
to make all laws which shall be necessary and 
proper for carrying into execution its enumer- 
ated powers, and all other powers vested by the 
Constitution in the Government of the United 
States, or any department or officer thereof, is 
purely a legislative power; and gives no au- 
tliority to assume or interfere with any ))owers 
of the President, or the judicial department. ' 
Instead of being a power to assail them, its ! 
legitimate and literal office is to uphold their 
powers and to give facilities in their execution. | 



That, or any other provision of the Constitu- 
tion gives to Congress no warrant or pretext to 
interfere with the executive power of removal 
from office, vested by the Constitution in the 
President alone. 

The power of removal and the power of 
appointment to office, though both executive, 
are in their nature distinct and independent of 
each other. One, the power of appointment, 
was treated specially and separately front the 
other in the Constitution, it as-sociating the 
Senate with the President in its exercise. But 
for this particular regulation of the power ot 
appointment, it is most probable that no 
question as to the other distinct power of re- 
moval from office would ever have been 
made ; and that all would have silently con- 
ceded that both powers being executive in 
their character, and all the executive power 
of the Government having been vested !>y the 
Constitution in the President, they properly 
appertained to him alone, and he would never 
have been challenged in the sole and exclusive 
exercise of either. But however that may be, 
the truth of this proposition cannot be suc- 
cessfully controverted : the provision of the 
Constitution associating the Senate with the 
President in t4ie power of apjjoiniment, does 
not invest it with the same, or any connection 
with the power of removal : or authorize Con- 
gress to pass the civil -office-tenure act, or any 
other act that would impair the President's 
sole power and right to exercise it. 

But the whole subject of the power of re- 
moval from office came up for consideration 
in the First Congress, on the organization of 
the Department of Foreign Affairs, in 178y, 
and elicited a debate of great ability among 
the ablest men of the body, many of whom 
had been members of the Convention which 
framed the Constitution. Congress was much 
divided on the subject, but a majority of bt)th 
Houses sustained the position that the Consti- 
tution conferred on the President the power 
to remove from office, and the contending par- 
ties made a compromise, by v/hich the act or- 
ganizing the Department recognized the power 
of the President to remove the head of this 
Department, in this language: 

"The chief clerk, whenever the prinei]>al officer 
shall be removed from ofliee by the I'resident of the 
United Stiites, or in any other case of vacancy, shall, 
during: such vacancy, have the charge and custody 
of all records, books, and papers appertaining to the 
said Department." 

The supporters of the exclusive power of 
the President were opposed to any language 
being used in the act that seemed to confer 
this power on the President, and its op|ionents 
accepted language that conceded and recog- 
nized the Presidei>t's power of removal with- 
out expressly deducing it from the Const if u tion. 

'i'he act establishing the Department of War, 
with a i)rovision in the same language recog- 
nizing the power of the President to remove 
the Secretary, was passed at a subsequent day 
of the same session, with but little and iio 
serious opposition. 



Both those acts formally admit the sole power 
of the President to remove the heads of the 
respective Departments, but neither of them 
contains any language to confer that power on 
tiie President. The supporters of the princi- 

Ele that the Constitution vested it solely in 
im rejected from the bill organizing the 
Department of Foreign Affairs ail language 
that seemed to confer it upon the President, 
and claimed and determined to maintain it as 
one of his powers solely from the Constitution ; 
and the opponents of this principle, being will- 
ing to concede the power to the President, if 
the acts did not expressly state the jiower to jje 
conferred on him by the Constitution, tliey 
were passed in their existing form, recognizing 
it as a presidential power to remove both Sec- 
retaries. The acts were not intended to confer 
tills power on the President; they have no 
language whatever to that effect, yet they con- 
cede that he possessed it; and he could derive 
it only from the Constitution. This was as 
certain an assertion and establishment of the 
sole constitutional power of the President to 
remove from office, as if it had been expressed 
in the most direct terms; and no attempt has 
ever, before tiie passage of the civil office- 
tenure bill, been made in Congress to disturb 
this question as tlius settled. 

From that time, every President has claimed 
and exercised the sole power of removal at 
all times as an executive power conferred by 
the Constitution. The great commentators on 
it, Kent, Story, and Rawle. have treated this 
power as belonging to the President alone by 
the provisions and effect of the Constitution 
itself, settled by the acts of Congress of 178'.), 
the uniform and unchallenged practice of the 
Government, and the general acquiescence of 
tiie country. The Su]ireme Court has repeat- 
edly, and without doubt or hesitation, recog- 
nized it as an established constitutional prin- 
ciple ; and Chief Justice Marshall many times, 
in his opinions, refers to it, as he does to the 
other and unquestioned powers of the Presi- 
dent. Hamilton and Madison were among its 
great authors and firm defenders ; it was con- 
ceded to be a settled principle by Clay, Cal- 
houn, Benton, Wright. Clayton, and all the 
statesmen of America down to the passage of 
the civil-rights bill ; and Mr. Webster main- 
tained, adhered to it, and advocated its exer- 
cise, while the Senate was in session and at 
all times, as Secretary of State under Presi- 
dent Tyler. No attempt had ever before been 
made to arrest or qualify its unconditional ex- 
ercise by the President, as well when the Sen- 
ate was in session as when it was not. The 
reason of America, guided by principle, au- 
thority, and experience, was unwilling to 
divest, unsettle, or change this presid;^ntial 
power by act of Congress or alteration of the 
Constitution because of being satisKed that it 
was essentially of the nature of an executive 
power and absolutely necessary to enable the 
President to perform his greatest duty, to see 
that the laws be faithfully executed. If a con- 



troverted constitutional question can ever be 
settled, the power of the President to remove 
from office at his own will has been beyond 
further legitimate question. 

The sixth section of the civil-office-tenure 
act before quoted declares that — 

"Every removal, .Tiipointinent, or cmploytnont, 
made, l/iul, or exercisfd contriiiy to the provisions 
of tliis act, and the makiiis.', siKnins. se;iliiig, or 
couiitersipniriK of any coininissiou or letter of au- 
thority for or in respect to any such appointment or 
etnphiyinent, shall be deemed, and are hereby de- 
clared to be, high misdemeanors," &c. 

But, if the Constitution invests thePresident 
with the sole and exclusive power to remove 
all the officers referred to in said act, his exer- 
cise of that power at all times is legitimate and 
makes a vacancy in the office, which liis duty 
requires him to fill according to the Constitu- 
tion and the laws; and an actof Congress which 
by its terms so provides as to strip him of that 
power, in whole or part, and to make his per- 
formance of duty after its exercise a crime, is 
unconstitutional and void. The exercise of a 
constitutional power and the performance of 
constitutional duty by the President can be 
made neither criminal nor punishable either by 
impeachment, or fine and imprisonment. 

If President .Johnson has from the Constitu- 
tion the sole power to remove from olfice, his 
letter to Mr. Stanton dismissing him from the 
office of Secretary of War could not be made 
a crime by any act which Congress could pass; 
and it produced a vacancy in the office which 
his action, in some form, was necessary to fill; 
and, in the meantime, it was his duty to supply 
the vacancy in the office temporarily according 
to law. 

Very soon after the Government went into 
operation, vacancies by death and otherwise 
occurred in various offices; and, whether it was 
during the recess or session of the Senate, the 
President was frequently not prepared to fill 
them properly by appointment and commis- 
sions to terminate at the end of its next ensu- 
ing session, or to make a nomination to it for 
its advice and consent, from a want of a knowl- 
edge of men, and many other causes. To meet 
this temporary exigence Congress, in an act 
passed in ^lay, 17'J2, made this provision: 

"That in case of the death, absence from the seat 
of Government, or sickness of the Secretary of State, 
Secretary of the Treasury, or of the Secretary of the 
Department of War, or of any officer of either of said 
Departments whose appointment is not in the head 
tliereof, whereby they cannot perform the duties of 
their respective offices, it shall be lawful for tlie Pres- 
ident of the United States, in case he shall think it 
necessary, to authorize any person or persons, at his 
discretion, to perform the duties of the said respective 
offices until .a successor shall be appointed." 

This law is strictly within the power of Con- 
gress : 

"To make all laws which shall be necessary and 
proper for carryinpr into execution the powers vested 
by the Constitution in the President." 

It confers no new power upon him ; all the 
executive power of tlie Government had been 
vested in him by the Constitution, and this act 
only furnished him facilities for its proper and 
convenient execution. 



8 



But this law was essentially defective ; it 
was limited to the three Departments Krst or- 
ganized — State, Treasury, and War — and to 
vacancies in otBce occasioned by death, ab- 
sence from the seat of Government, or sick- 
ness. Other legislation was necessary, and 
in February, 1795, Congress passed this other 
law : 

"That in case of vacancy in the office of Secretary 
of State, Secretary of the Treasury, or of the Secre- 
tary of the Department of War, or of any otficer of 
either of tlie said Departments whose ajipointment 
is not in tlie head thereof, whereby they cannot per- 
form the duties of their respective offices, it shall be 
lawful for tlie President of the United ^states, in case 
he shall think it necessary, to authorize am/ person 
or persons, at his discretion, to perform the duties 
of said respective offices, until a successor be ap- 
pointed or such vacancy filled: Provided, That no 
one vacancy shall be supplied in manner aforesaid 
for a longer period than six months." 

It will be observed, that this second law 
covers the whole ground, and more, occupied 
by the first; it applies to the same three De- 
partments, none others being then organized; 
but it is extended beyond vacancies occasioned 
by death, absence from the seat of Govern-" 
ment, or sickness, and provides for all va- 
cancies^ from lohatever cuudes produced, and 
limits the continuance of such supplies to six 
months. 

But this legislation in time became incom- 
plete, as it did not provide for this supply of 
temporary service in the Navy, Post Office, 
and Interior Departments, and the office of 
Attorney General, when vacancies should 
occur in them. But, nevertheless, in consid- 
eration of the special requisition of tlie Consti- 
tution, that the President should see that the 
laws be faithfully executed, that all the execu- 
tive power of the Government was vested in 
him, and from the necessity of the case, every 
President from the passage of the first act of 
1792 exercised the power of designating some 
person for the supply temporarily, when vacan- 
ciesoccurred, notoiily in the Foreign, Treasury, 
and War Dejiartments, Ijut also in all the other 
Departments; and there are many instances 
of such appointments spreading over that 
whole period. These temporary appointments 
were not provided for by tlie Constitution, but 
from time to time by the laws of Congress 
which regulated them ; and they were in truth 
not appointments to office, but a designation 
of persons to supply the places and perform 
the duties temporarily of otlices, in which va- 
cancies occurred, until they could be filled by 
regular appointments ; and their necessity and 
validity were questioned by no one. 

But in February, 18()3, Montgomery Blair, 
Postmaster General, resigned his office during 
the session of the Senate, and President Lin- 
coln designated an Assistant Postmaster Gen- 
eral to perform the duties ad interim of Post- 
master General, and afterwards sent a special 
message to Congress, then in session, asking its 
attention to the fact, that the laws of Congress 
in relation to such appointments, applied only 
to the Foreign, Treasury, and War Depart- 



ments, and recommended the passage of an 
act to extend them to the other Departments uf 
the Government. Thereupon Congress passed 
the act containing these provisions: 

" That in case of the death, resignation, absence 
from the seat of Government, or sickness of the head 
of any executive Department uf the Government, or 
of any officer of either of said Departments whose ap- 
pointment is not in the head thereof, whereby they 
cannot perform the duties of their respective offices, 
it shall be lawful for the President of the United 
States, in case heshallthinkitnecessary, to authorize 
the headof any other executive Department, or other 
otficer in either of said Departments whose appoint- 
ment is vested in the President, at his discretion, to 
perform the duties of the said respective offices until 
a successor be appointed, or until such absence or 
inability by sickness shall cease: Provided, That no 
one vacancy shall be supplied in manner aforesaid 
for a longer period than si.x months. 

"Sec 2. And be it further enucied. That all acts or 
parts of acts inconsistent with the provisions of this 
act are hereby repealed." 

I have embodied in this opinion the whole 
of the three acts of Congress, authorizing the 
temporary supply, or ad i/t<e?'m appointments 
to the several Departments of the Govern- 
ment. The last act only has express words 
of repeal, and they are restricted to acts or 
parts of acts that are inconsistent with its pro- 
visions. It provides in general language for 
the supply of vacancies occurring in all the 
Departments, and the spirit and meaning of 
the provision will also include the office of At- 
torney General ; it, however, does not apply to 
all vacancies that may occur in them, but only 
to such as are caused by "death, resignation, 
absence from the seat of Government, or sick- 
ness." It makes no provision whatever for 
vacancies resulting from other causes, but, like 
the act of 1792, is defective in this respect; 
that act having provided only for vacancies 
produced by death, absence from the seat of 
Government, or sickness, and this act making 
provision but for one additional class of vacan- 
cies, by death ; both omitted vacancies by 
removal and expiration of term of office. 

The chief purpose of the act of 179') was to 
supply the defect of the act of 1792, in the class 
of vacancies, and it was made to extend to 
vacancies generally, all vacancies that might 
occur from any cause; but, like the previous 
act, it extended only to the Departments of For- 
eign Affairs, of the Treasury, and of War, 
being all the Departments then organized. If 
this provision of the act of 1795, had embodied 
words which would have applied it to such 
other Departments of the Government as might 
thereafter be created, there would have been 
no necessity for the act of 18G3, and there never 
would have been any thought of it. The act 
of 1795, comprehending vacancies from everi/ 
cause — expiration of the term of office, re- 
moval, or any other possible cause— and the 
act of 1863 providing only for such as were 
produced by death, resignation, absence from 
the seat of Government, and sickness, the act 
of 1795, so far as it provides for vacancies 
from expiration of official term or removal 
from office, is not inconsistent with the act of 
1803, and therefore, to that extent, is not re- 



9 



pealed by it, and governs the case of the re- 
moval of" Stanton and the letter of the Presi- 
dent to General Thomas directing him to take 
charge ad interim of the War Department. 
If there was a vacancy it was produced by 
presidential removal; and the designation by 
the President of General Thomas or any other 
person for the temporary performance of its 
duties was autliorized by the law of 17'.t5, and 
if there was no vacancy in the olHce there could 
be and was no appointment to or employ- 
ment of Thomas in it, as Stanton was never 
out and he never in actually ; and the letter 
of the President to him being neither appoint- 
ment to or employment in the otfice, and hav- 
ing no validity or effect, its simple delivery to 
Thomas constitutes no crime for punishment 
by impeachment, or trial, judgment, and sen- 
tence in a criminal court. It is the appoint- 
ment or emploi/ment, not the abortive etl'ort to 
do either, by the President that is the offense. 

It is admitted, that if the President's letter 
to Thomas had been addressed to any officer 
of either of the Departments, or he had filled 
an office in one of them, it would not have been 
in conflict with the act of I8G0, and would have 
been authorized by the act of 170.5. As it had 
no effect to put Stanton out or Thomas in 
office, and no more results were produced by it 
than if it had never been written, can statesmen. 
Senators, and judges announce to the nation 
and the world that the writing of this letter 
is a higli crime and misdemeanor, and sufficient 
ground for the impeachment of the President of 
the United States? 

There is another constitutional principle 
which prevents the civil-office- tenure act from 
governing the case of Stanton. He was ap- 
pointed by President Lincoln in his first term, 
and by the language of his commission was to 
hold his office during the pleasure of the Pres- 
ident. All concede that the law, constitutional 
or statutory at that time, and down to the 
passage of the civil- office-tenure bill, author- 
ized the President to remove Stanton from 
office whenever he willed to do so. 

But it is contended, that this act changed the 
tenure and conditions by which Stanton held 
his office, from an indefinite term and presi- 
dential will to a certain term, and the over- 
ruling of the presidential by the senatorial 
will ; tiiat he held his office until the expiration 
of one month from the 4th of March, 18G9, 
when the four years for which Mr. Lincoln was 
elected the second time would end, and Mr. 
Stanton's term as Secretary of War would thus 
continue until April G, 1869, during which pe- 
riod he could not be removed by the President 
without the permission of the Senate. This is 
not the appointment, the ordination into the 
office of Secretary of War of Stanton as Pres- 
ident Lincoln made it, l)ut a new and essen- 
tially different one; and who conferred it upon 
him? Not the President, by and with the ad- 
vice and consent of the Senate, but Congress, 
by the form of a legislative act. It is an indi- 
rect attempt by the legislative department of 



the Government to strip the executive depart- 
ment, of a material portion of the power of 
appointment to office, and to invest one of its 
own branches with it, and this against the 
presidential veto. To give Mr. Stanton, or 
any officer in office, the benefits of the new 
conditions and tenure organized by the civil- 
office-tenure act, requires a new appointment 
to be made by the President, with the advice 
and consent of the Senate, and not by Con- 
gress in the form of an act of legislation. To 
confer on him these cumulative benefits would 
require a cumulative appointment and com- 
mission, in the form and by the authority pre- 
scribed by the Constitution. 

But another ground of the defense against 
the articles based on the removal of Mr. Stan- 
ton is, that his case does not, and was not, in- 
tended to come within the language and oper- 
ation of the civil-office-tenure act. 

From the terms, provisions, and history of 
the passage of that act through the two Houses 
of Congress, it is plain that tliat body adopted 
the general purpose of requiring the concur- 
rent action of the Senate to enable the Presi- 
dent to remove the officers designated in it; 
but intended so far to modify that purpose as 
to allow to every President, as his personal and 
official prerogative, to make one selection of 
all the members of his Cabinet. No one will 
deny that this is the general rule established by 
the act; and to give it practical effect it pro- 
vides that the term of office of the chiefs of the 
several Departments, shall end one month after 
the term of the President by whom they may 
have been appointed. The obvious intention 
was that no President should be bound to con- 
tinue officers between whom and himself such 
important and confidential relations must ne- 
cessarily subsist, who had not been chosen by 
him, but that he should have one choice for each 
office, and be held to it until the Senate should 
give its consent that he might make another. 

This right is accorded to him not by express 
language, but by implication so clear as to ad- 
mit of no doubt; and he possesses it as the 
portion of his before general power of removal, 
of which this act does not attempts tfl deprive 
him — it does not confer, or attempt to confer it 
upon him, but leaves him in possession of it. 
The act is framed on the concession of the then 
existing power of the President, to remove the 
officers tor whose cases it provides; and after 
declaring a general rule for them, excepts from 
its operation the Cabinet officers, and makes 
for them a special rule, which is to continue to 
operate in relation to each one for one month 
after the expiration of the term of the Presi- 
dent by whom he was appointed ; and then 
leaves him subject to the President's sole and 
unqualified power of removal as it existed be- 
fore the act. The President may then permit 
him to remain in office, or may remove him at 
his pleasure, whether the Senate is in session 
or not. After rem.oving him the President may 
designate any person to perform the duties of 
the office ad interim for six months, by which 



10 



time lie must make a nomination to the Senate 
for its advice and consent. 

The general and unrestricted power to re- 
move from office had been exercised, without 
question, Ijy every President of the United 
States up to the date of the civil-olfice-tenure 
act, including Tyler, Fillmore, and Johnson, 
Vice Presidents, on whom the Constitution had 
devolved the office of President. 

The first section of the civil-office-tenure act 
embodies all of it that bears upon the question, 
whether the case of Mr. Stanton is compre- 
hended by it. By this law each Cabinet officer 
holds his place for one month after the expira- 
tion "of the term of the President by whom 
he was appointed ;" it is, therefore, necessary 
to know what is meant by the words, " the term 
of the President." 

Section one, article two, of the Constitution, 
is in these words : 

"Tfio executive power shall be vested in a Presi- 
dent of the United States of America, lie shall hold 
his office during the term of four years, and, together 
with the Vice President, chosen for the same time, 
be eiected as foitows." 

All authorities say that "term is the time 
for which anything lasts.'' In our Govern- 
ment no office lasts after the death of the 
termor, or passes to heirs, devisees, or execu- 
tors, but reverts immediately to the State. 
The tenure of some offices is for life, others 
for a defitiite number of years, and some dur- 
ing the pleasure of the appointing power; but 
the term of all ends also inexorably upon the 
death of the incumbent. The term of the many 
marshals and other officers, who are appointed 
for four years could, with as much reason and 
truth, be said to continue to the end of that 
time, though the incumbents died before its 
lapse, as it can be said that the term of a 
President, who died early in the four years for 
which lie was elected, runs on until the expi- 
ration of the four years. When a man in office 
dies that closes his terra ; and so soon as 
another is appointed to it his term commences. 

Mr. Lincoln was elected President and Mr. 
Hamlin Vice President lor a common term of 
four years, commencing on the 4th of March, 
1801, and as both survived it the term of each 
ended by lapse of time, March 3, 18(55. The 
second term of Mr. Lincoln for four years, and 
Mr. Johnson's term for the same time, began 
the 4th of March, 1805, and both ended April 
following ; Mr. Lipcoln's by his death, and Mr. 
Johnson's by the office of President being 
devolved- on liim, and he thereby ceasing to be 
Vice President under this provision of the 
Constitution: 

"In case of the removal of tBe President from 
office, or of his deatli, resiKuation, or inability to dis- 
charse tlic powers and duties of the said office, the 
same shall devolve on the Vice President." 

Mr. Johnson become President by having 
been elected Vice President, and by the oper- 
ation of the Constitution, upon the death of 
the President, Mr. Lincoln. He is as much 
the President as if he had been elected to that 
office instead of to the Vice Presidency. His 



presidential term commenced when he waa 

inaugurated into the office, and is to continue 
to last for the residue of the term for which 
Mr. Lincoln was elected President and he Vice 
President. His presidential term, though not 
so long, is as definite as Mr. Lincolirs was; 
both Ijy the Constitution were to continue until 
the 4th of March, 1809, and both, by the same 
law, were subject to be determined before that 
time by their "removal from office, death, res- 
ignation, or inability to discharge the powers 
and duties of the office." 'J'he Presidency, 
while Mr. Johnson has been filling it and per- 
forming its duties under the Constitution, is as 
much his office as it was Mr. Lincoln's wliea 
he held the same relation to it; and the jirop- 
osition that this time of Mr. Johnson in the 
office is not his term but a continuation of 
Mr. Lincoln's term, is not sustained by the 
Constitution, fact, or reason. 

But if it were a continuation of Mr. Lin- 
coln's term, it would be of his second, not his 
first term, which the Constitution inexorably 
closed on the 3d March, 1805; and he having 
been reiilected his second term commenced 
the next day. If Mr. Johnson be serving out 
Mr. Lincoln's term, it is not his first one, for 
that is "with the years before the flood," but 
his second term; and Mr. Johnson would be 
invested with every right and power in it to 
which Mr. Lincol-n would be entitled ; and 
among them would be the power and the right 
to remove Mr. Stanton from^the office of Sec- 
retary of War. This act provides, that the 
chief officer of the seven principal Depart- 
ments of the Government, shall respectively 
hold their offices' according to the tenure es- 
tablished by it, for and during the term of the 
President by whom they may have been ap- 
pointed. This is a permanent and uniform law, 
and the measure established by it being the 
term of the President Vjy whom the officer was 
appointed, and one month thereafter, and 
Mr. Stanton having been appointed Secretary 
of War by Mr. Lincoln during his first term 
in January, 1802, and that term having expired 
with the 3d of March, 1805, if Mr. Lincoln 
had lived until the passage of this act, under 
it he would have had the power to remove Mr. 
Stanton, and any other of his Cabinet officers 
whom he had not appointed in his second term, 
and this right passed to President Johnson. 

There are several purposes a]>parent on the 
face of the civil-office-tenure bill : 1. That all 
officers appointed by and with the advice and 
consent of the Senate should hold their places 
until it should approve their removal. 2. 'i'hat 
the Cabinet officers of the President should be 
so far exceptional to this rule, that all Presi- 
dents should have the privilege and the power 
to make one selection for eacli of those offices. 
3. That, having made a choice, he shall be 
held to it until the Senate shall have given 
him its consent to make another choice. This 
arrangement in relation to the President and 
his Cabinet was, doubtless, made upon some 
reasons ; and all concede that it applies to every 



11 



President chosen by the Electoral College ; and 
what reasons are there that make it necessary 
and proper for the administration of a Presi- 
dent so elected that do not apply with equal 
force to one upon wliom the Constitution has 
devolved the office on the death of a President 
with whom he was elected to the Vice Presi- 
dency? 'J'he plain letter and meaning of the 
Consiitution and this act of Congress, assure 
this right to President Johnson, and it cannot 
be wrested from him without doing violence to 
both Consliluiion and law. If he had given in 
hisadliesion, and plainly and palpably exercised 
this power ibr the benefit of the party which 
passed the law, by removing one of his Secre- 
taries who is opposed to that party, and had, 
nominated to the place one of their faithful and 
trusted men, would his right to make the re- 
moval have been questioned? 

After the best inquiry of which I am capa- 
ble, 1 think these positions to be true beyond 
reasonable doubt: 

1. That the President, by the well-settled 
principle of the Constitution, possesses, as one 
of his executive powers, the sole and exclusive 
power of removing all officers, as well when the 
Senate is in session as when it is not. 

2. 1'hat the provision of the civil-office-tenure 
act, which requires the President to report to 
the Senate his removal of certain officers, and 
its advice and concurrence to make the re- 
moval complete and effective, is in derogation 
of that constitutional power of the President, 
and is, therefore, unconstitutional and void. 

3. That the case of the removal of Stanton 
does not come within the provision, spirit, and 
meaning of the civil-office-tenure act. 

4. That President .Johnson had the power 
and the right to remove Stanton as Secretary 
of War ; and having removed him, and thereby 
caused a vacancy, he had the power, under the 
act of 1795, and it was his duty to supply that 
vacancy temporarily ; and his designation of 
General Thomas to take charge of the office 
ad interim was a proper exercise of power. 
Consequently neither the removal of Stanton, 
nor the ad interim appointment of Thomas by 
President Johnson, wasan impeachable offense, 
but a legitimate exercise of power. 

There is then loft for my examination, only 
those articles of impeachment which embrace 
the matter of the conspiracies with General 
Thomas charged against the President. There 
is but one law of Congress ngainst conspira- 
cies, which was passed in 18(31, and is in these 
words : 

" That if two or more persons within any State or 
Territory of the United States shail conspire to- 
gethiT t>) overtlirow or to i)ut down or to destroy by 
force theGovernment of tlie United State.'*, or to levy 
war asainst the United States, or to oppose by force 
tbeaullioiityof theGoverinueutof the United States, 
or by force to prevent, hiniier. or delay the execu- 
tion of any law of the United States, or by foree to 
seize, take, or possess any property of the United 
States asjainst tlic will or contrary to tfie authority 
of the United States, or by forec or intimidation or 
threats to prevent any person from accetiting or hold- 
ing liny ofSoe or trust or place of confidence under 



the United States; each and every person so olTend- 
ing shall be Kuilty of a hish crime, and upon con- 
viction thereof in any district or circuit court of tiie 
United State."" InivinK jurisdiction thereof, or district 
or supreme court ot any Territory of the United 
States having jurisdiction tliereof, shall be jiuiiislieil 
by a fine not less than S'lOO and not more than !?■■"', 000, 
or by imprisonment, with' or without hard labor, as 
the court shall determine, for a period not less than 
six montlis nor greater tlian six years, or by both 
such tine and imprisonment." 

This was a war mea.sHre passed at the be- 
ginning of the rebellion, and was directed 
against rebels and traitors, and their abettors 
at that time and in the future. It was never 
intended, and is a perversion of that law to at- 
tempt to apply it to the case of a removal by 
the President of an oiKcer of the Government, 
and his direction to the person whom he had 
designated to supply temporarily the vacancy to 
take possession of the office, and his applica- 
tion to the person removed to turn over to him 
the books, property, «fcc., appertaining to the 
office. 

All the offenses enacted by that law re- 
quire, as an essential constituent of them, that 
the persons committing them shall conspire 
together to do the several acts which are made 
criminal with force or intimidation or threats; 
and in the absence of that purjiose there is no 
crime. The charges against the President are, 
in the fourth article, that he did unlawfully con- 
spire with one Lorenzo Thomas, and with other 
persons to the Hotise of Representatives un- 
known, with intent, by intimidation and threats, 
unlawfully to hinder and prevent Edwin M. 
Stanton, Secretary of War, from holding said 
office; in the fifth article, that he did unlaw- 
fully conspire with one Lorenzo Thomas, and 
with other persons to the House of liepresent- 
atives unknown, to prevent and hinder the 
execution of an act entitled "An act regulating 
the tenure of certain civil offices;' in the sixth 
article, that he did unlawfully conspire with one 
Lorenzo Thomas by force to seize, take, and 
possess the property of the United States in 
the Department of War ; in the seventh arti- 
cle, that he did unlawfully conspire with one 
Lorenzo Thomas with intent unlawfully to seize, 
take, and possess the property of the United 
States in the Department of War. 

As to the fifth and seventh articles, they 
charge no intent or purpose on the part of the 
President of doing the things therein specified 
with force, intimidation, or threats; which 
being of the essence of said offenses and omit- 
ted, no offenses are charged; and as to those 
articles, and also the fourth and sixth, there is 
no evidence that the President entered into 
any conspiracy wjth General Thomas, or any 
persons, to do the things set forth in said 
articles; or that he intended, advised, or sanc- 
tioned the use of any force, intimidation, or 
threats in doing them. The whole case against 
the President in connection with the matters 
charged in those four articles is, that he wrote 
a letter of the usual tenor to Mr. Stanton, re- 
moving him from the oflice of Secretary of 
War, and a letter to General Thomas, notify- 



12 



inghim of his designation to snpply the vacancy 
temporarily, and directing him to take charge 
of tlie oflice and enter upon its duties; all of 
■which, by the Constitution and laws, he had 
the power and the right to do.' 1'here is no 
evidence that he intended, advised, or sanc- 
tioned the use of any force, intimidation, or 
threats in connection with these transactions. 
1~liere is nothing in the case to sustain the 
fourth, fifth, sixth, and seventh articles, and 
with the others they all fall together. 

Upon the grounds I have stated I reach the 
Gonchision, that the defense of the President 
is full and complete; but there are other grave 
and weighty reasons why this court should not 
proceed to his conviction, that I will now pro- 
ceed to consider. 

The Senate is sitting as a court of impeach- 
ment, to try articles preferred by the House of 
Representatives against the President of the 
United States. Each member has taken a 
special oath prescribed by the Constitution, 
and in these words : 

"I solemnly swear that in all things appertaining 
to the trial of the itnpeachment of Andrew Johnson, 
President of the United States, now pending, I will 
do impartial justice according to the Constitution 
and the law : so help me God." 

None of his acts can be considered but 
those which are set forth against him in the 
articles as offenses, and he can be convicted 
only upon such as are defined and declared by 
the laws of the United States to be high 
crimes or misdemeanors, and which are in 
their nature and essence offenses of that char- 
acter. This court is bound to try these arti- 
cles of impeachment by the same laws and 
rules of evidence, substantially, which would 
govern an ordinary criminal court on the trial 
of indictments against Andrew Johnson for 
the same offenses — except in the matter of 
judgment against him, which here would be 
more grievous. 

I will quote from Blackstone's Commenta- 
ries a fundamental principle, which is found 
in all works on criminal law, is recognized in 
every criminal court in America, and which 
should guide and control this court in the pend- 
ing trial: 

"And as vicious will without a vicious act is no civil 
crime, so, on the other hand, an unwarrantable act 
■without a vicious will is no crime at all. So that 
to constitute a crime against human laws there must 
be first a vicious will, and secondly, an unlawful act 
consequent upon such vicious will." 

This principle, that to the unlawful act there 
must attach a criminal intent or purpose, which 
prompted the commission of the act, is the 
guiding light of all courts: a person doing the 
act charged to be a crime, in its absence, might 
be guilty, but it would be without criminality. 
The law generally infers the criminal intent 
from the unlawful act, but it always permits 
the accused party to show by proof the absence 
of the criminal intent, which is generally an 
easier task in relation to offenses merely mala 
prohibita, than in those which are also mala 
ee. All the offenses charged against the Pres- 
ident are merely and strictly mala prohibita. 



If the civil-office-tenure bill on its face is so 
ambiguous and uncertain as not to inform an 
officer of Government possessed of a good 
common understanding, with reasonable cer- 
tainty, whether or not it did comprehend the 
case of Mr. Stanton, atid forbid his removal 
from office by the President, that act being 
new and never having received a judicial con- 
struction ; and Andrew Johnson was under 
trial on indictment in an ordinary criminal 
court for the violation of that act, in the re- 
moval of Mr. Stanton, the court on motion 
would instruct the jury to acquit. 

If the question whether that act does not 
trench on a great constitutional power of the 
President, and is not therefore void, be one of 
doubt and difficulty, and President Johnson 
desired to have that question solved correctly; 
and to that end consulted the Attorney Gen- 
eral and all the other members of his Cabinet, 
and their opinion was unanimous that it was 
unconstitutional ; and he was counseled by 
them all, including Mr. Stanton, to veto the 
act upon that ground, and one of his purposes 
in removing Mr. Stanton was to make a case 
for the Supreme Court, in which its constitu- 
tionality should be decided, universal reason 
and justice would pronounce, that in writing 
his letter to Mr. Stanton dismissing him from 
office, the President had no criminal intent, 
and did not commit an impeachal)le offense. 

The evidence on this point which the prose- 
cution presented, and which was admitted with- 
out objection, would probably be sufficient with 
most minds to exculpate the President from all 
criminal intent; but the most satisfactory proof 
that could have been made upon it, and which 
was clearly competent, was the evidence of the 
members of the Cabinet, which a majority of 
this court ruled it would not hear. A criminal 
court would not have excluded this evidence, 
or, if having done so inadvertently, on con- 
viction by the jury, it would of its own motion 
award a new trial. In the face of so grave an 
error committed by this court, and affecting so 
materially the defense of the respondent, it 
would be a great wrong to him and the country 
to proceed to his conviction. 

The powers of our Government are care- 
fully and wisely divided out among the three 
departments, and the lines of separation are in 
some cases so indistinct that it is difficult to 
avoid overstepping them. A just and patriotic 
President would not willfully infringe the con- 
stitutional powers and rights of Congress ; nor 
would that body, if Ciomposed of such men, 
make any intentional aggression upon those 
confided to the President. I have observed no 
such disposition on the part of the present ex- 
ecutive head ; and the question between him 
and Congress growing out of the civil-otfice- 
tenure bill, he desired to have submitted to and 
decided by the Supreme Court, as has been 
satisfactorily proved in this case. He took 
legal advice, and was informed that under ex- 
isting laws he could not have any proceeding 
instituted to determine it, which could be taken 



13 



to the Supreme Court and be tried by it until 
about the time or after the expiration of his 
presidential term. He had no remedy by which 
be could test the question in a reasonable 
time. 

Congress and the Presidentboth should have 
desired and have sought the settlement of 
this, and all other questions of controverted 
power betv/een them, by the judgment of that 
tribunal which the Constitution bad designed 
for that purpose. In a few hours of any day. 
Congress could have framed and passed a law 
which would have enabled the Supreme Court 
summarily to have got possession of and to 
decide promptly this, and all other questions 
between it and the President ; and such settle- 
ment of the disputed boundaries of their re- 
spective powers, would have been accepted by 
the people generally, and as to those ques- 
tions would have given repose to the country. 
But instead of such wise and peaceful legisla- 
tion, Congress was exhausting all its ingenuity 
and all its resources to make its aggressions 
upon the Executive Departments successful 
and complete ; and so to organize, fetter, and 
intimidate the Supreme Court, as to prevent 
it from interfering to perform its great office 
of settling such questions by the Constitution, 
law, and reason. 

But Mr. Stanton sued out a criminal warrant 
against General Thomas to protect himself 
against intrusion into the War Office ; and when 
the President heard of this proceeding he ex- 
pressed his gratification, knowing that the 
question of the validity of his removal of Mr. 
Stanton would come up on the hearing of a 
writ of habeas corpus that might be sued out 
by General Thomas. The latter executed bond 
■with surety to appear before Judge Cartter to 
answer the complaint of Stanton, and at the 
appointed time appeared before the Judge 
with his surety, who surrendered him to the 
court. It was the plain duty of Judge Cartter 
to have ordered General Thomas into the cus- 
tody of the marshal, or to prison ; but he did 
neither, because either would have been a re- 
straint of his liberty and have made a ground 
for suing out a writ of habeas corpus for a 
judicial inquiry into the cause of his deten- 
tion. The case, immediately after hearing by 
the judge before whom the writ might be re- 
turned, could be taken to the Supreme Court, 
heard at once, and the questions of right be- 
tween Stanton a'nd Thomas to the War Office 
and the constitutionality of the civil-office- 
tenure bill, would be before the court for its 
decision. 

This was the purpose of Thomas, and by this 
time it had become apparent ; and the impar- 
tial and patriotic jndge determined to defeat 
it by the disregard of his own otKcial duty ; 
and he refused to order Thomas into custody, 
and consequently there ceased to be any ground 
for Thomas to sue out a writ of habeas corpus. 
Here a corrupt judge revealed himself, and 
afforded to the House of Representatives an 
opportunity to impeach him for corruption in 



office, palpable and flagitious. But it waa 
their bull that had gored the ox. 

The purpose and desire of the President, to 
have the question of the constitutionality of the 
civil-rights bill decided by the Supreme Court 
is manifest ; that it, and all other questions be- 
tween them have not been submitted to that 
test is due to the default of Congress. 

But the exclusion of important evidence by 
this court involves another and very grave 
error. The Constitution says of impeachment, 
" No person shall be convicted without the con- 
currence of two thirds of the members present." 
Convicted does not mean simphf condemned, 
lor a man may be condemned of a crime with- 
out or against evidence; but convicted means 
proved and determined to be guiltj/. There injiy 
be condemnation, but cannot be conviction with- 
out proo/. One of the necessary elements of 
conviction is evidence, and it might be impos- 
sible on all the evidence of the defense in a 
case, and yet practicable and easy upon the 
residue after excluding a material part of it. 
The exclusion of material evidence is a part of 
conviction, and may hn substantially and pracii- 
calhj the conviction. 

But conviction is a totality, can exist only 
in solido, and in all its parts and processes, 
and as a whole, it requires two thirds of the 
Senators present. To demand two thirds to 
convict, and to permit a majority to exclude 
all or a material part of the evidence which 
might produce conviction, would not only be 
a hollow mockery, but an absurdity and con- 
tradiction. The constitutional rule, which re- 
quires two thirds to convict, by necessary im- 
plication, makes the same number necessary to 
rule out the defendant's evidence, in whole or 
part, and so produce conviction. If this court, 
by a majority of its members, had excluded 
the whole of the defendant's evidence, it would 
have shocked the country, and there would 
have been a general exclamation, that a rule 
of practice which would enable a bare major- 
ity indirectly to effect what a great constitu- 
tional principle required two thirds to do, to 
convict in all cases of impeachment, was both 
mischievous and unsound. This court should 
correct this erroneous ruling of an important 
constitutional principle by its judgment in favor 
of the President. 

There are still other cogent considerations 
against the impeachment of the President, one 
of the most weighty of which I made at the 
opening of the trial, and will here restate. 
This court is not constituted according to the 
requirements of the Constitution, and, there- 
fore, is incompetent to try the case before it. 

The Constitution provides that — 

"The Senate of the United States shall be com- 

Eoscd of two Senators from each State, chosen by the 
egislature thereof for six years; and each rienator 
shall have one vote." * * * * " JJo 
State, without its consent, shall be deprived of its 
equal suftraso in the Senate." • * * * 
" riic Senate shall have the solo power to try all im- 
peachment?," &c. 

Every State has an equal right to have two 



14 



members of the Senate, and to choose them 

by her Legishiture, and to organize her gov- 
ernment and elect that Legislature by her own 
people, with whom rests her political power, 
without any dictation or interference by Con- 
gress. ^^'hon a State has chosen her Senators, 
and they appl3' at the bar of the Senate for 
adniissiun as members, it is the right of the 
State and of her Senators-elect, if they have 
the qualiKcations required bj' the Constitution, 
to be admitted, ai;d liiis body cannot, without 
violating it, keep them out. The Senate has 
the right to reject an applicant who does not 
present himself with qualilications, election, 
and return in conformity to the Constitution, 
but every one who comes so arrayed is entitled 
to admission. 

In time of peace, when there is no rebellion 
or insurrection in a State against the United 
States, a majority or any number of the Senate 
or of the two Houses of Congress have no 
right or power to deny to such or any State 
re)iresentation in them ; and its exercise is 
destructive of the Constitution, and overthrows 
the Government which it created. Such a power 
would at all times enable a faction, that hap- 
pened to hold a majority in the two Houses to 
mutilate them at will, and control the whole 
Government by excluding the Senators and 
Representatives from as many States as might 
be needful for their purposes. All this has 
been inaugurated and is in course of successful 
enactment by the dominant party. 

When the rebellion was crushed out and 
those engaged in it made their submission, the 
Constitution, by its own force, reinstated the 
States involved in it de jure to their previous 
position in the Union, with all the rights and 
duties of the other States. They conformed 
their constitutions and governments, so far as 
they had been estranged by secession and 
rebellion, to the Constitution and Government 
of the United States, and elected their Senators 
and Representatives. 

Congress by many of its laws, the Executive 
by multitudinous appointments and other acts, 
and the Supreme Court by hearing all cases 
coming up from them and allotting its mem- 
bers to lit)ld circuit courts in them, recognized 
them as States ; but still the Senate and House 
persisted in keejiing out their Senators and 
Representatives. At length Tennessee ex- 
tended the right of suffrage to her negro popu- 
lation, and disfranchised a large portion other 
v/hite men that had been implicated in the 
rebellion, and forthwith the majority in the 
two Houses admitted her Senators and Repre- 
sentatives ; but the other southern States con- 
tinued to be contumacious on the vital, radical 
party question of negro suffrage, and therefore 
were ccmtinued to be denied their great con- 
stitutional right of representation in the two 
Houses of Congress. It was thus demonstrated, 
that the cause of denying to the southern States 
representation in Congress, in violation of the 
Constitution, was their noi having conferred 
the right to vote on their negro population, 



and that they were to continue'unrepresented 
until they surrendered that point, or until 
means could be devised to fasten it upon 
them. A Senate from which almost one third 
of its members is excluded, and who, if pres- 
ent, would probably differ from the nugority 
of those herein their judgment of this import- 
ant case, cannot form a constitutional court 
of impeachment lor its trial. 

The impeachment of the President of the 
United States is the arraignment of the execu- 
tive department of the Government by one 
branch of the legislative department and its 
trial by the other. The incongruity of such a 
responsibility and consequent danger of the 
ultimate subordination of the executive to the 
legislative department excited the gravest ap- 
prehensions of that wisest political sage, Mr. 
Madison, when the Constitution was being 
framed. Short of the sword, it is the extreme 
remedy, and was intended for the worst politi- 
cal disorders of the executive dej)artment. 
Nothing but treason, otKcial bribery, or other 
high crimes and misdemeanors, made so by 
law, and also in their nature of deep moral 
turpitude, which are dangerous to the safety 
of the State, and which palpably disqualify 
and make unfit an incumbent to remain in 
the office of President, can justify its applica- 
tion to him. Cases that do not come up to 
this measure of delinquency, those who made 
the Constitution intended should be remedied 
in the frequency of our elections by the people 
at the ballot-box, and the public repose and 
welfare require that they should be referred to 
that most appropriate tribunal. 

Impeachment was not intended to be used 
as an engine to gratify private malice, to avenge 
disappointed expectations, to forward schemes 
of personal ambition, to strengthen the meas- 
ures or continue the power of a party, to pun- 
ish partisan infidelity, to repress and crush its 
dissensions, to build up or put down opposing 
factions. By our system all that sort ot work 
is to be done in popular canvasses; and to 
bring the great and extraordinary remedy of 
impeachment to do any of it, is the vile pros- 
titution of what was intended to be a rare and 
august remedy for great evils of state. 

The impeachment of a President of the 
United States, for a difference of political policy 
between him and Congress, is a monstrous 
perversion of power. Is the present prosecu- 
tion anything but that? Pre'sident Johnson 
and Congress agreed in their policy and meas- 
ures to put down the rebellion, and they were 
signally successful ; and after it was crushed 
out these departments of the Government did 
many formal and important official acts relating 
to each and all of them engaged in the rebel- 
lion as States in the Union, and as having the 
same relations as the other States with the 
Government of the United States. 

Those States complied with conditions in- 
sisted upon both by the President and Con- 
gress, and by their constitutions and laws they 
respectively abolished slavei'y, renounced the 



• jjt I'^ntin 



15 



principle of secession, repudiated their debts 
cieuted by their rebellion, and ratified thethir- 
teenlfi amendment of the Constitution, by which 
slavery was abolished tliroughoiit the United 
Stales. For the masses of the people of those 
Staif's, the President thought all this was sub- 
mission and expiation enough, and refused to 
insisi tliat they should, in addition, confer on 
their late slaves, who in two States exceeded 
the whites, and in all of them were a large por- 
tion of the aggregate population, the right of 
sufiVage, nor would he consent to unite in un- 
constitutional measures to foice negro suffrage 
upOH those States. I'his is the real lieud and 
front of the President's offending: he would 
not cooperate with the Radicals in their scheme 
to get possession of and control the govern- 
ments and all the political power of the south- 
ern States by the agency of voting negroes 
against the will of the while people, and to all 
their unconstitutional measures to effect it he 
opposed the power with which the Constitution 
had invested him. 

A subordinate ground of their ire against 
the I'lesident was, that to many of the people 
of ihe southern Slates who were engaged in 
the rebellion, he extended the magnanimity 
and clemency of the people of the United 
States in the exercise of the pardoning power, 
the noblest of all tlie great powers with which 
they have intrusted him. But there were no 
rebels, however vile, tliat were willing to be- 
come the liegemen of the Piadical party, whose 
pardon they did not favor; and they have 
trenched further upon the powers of the Pres- 
ident by assuming that of pardon, in bills in- 
trofiuced in both Houses to remove the dis- 
abilities of a great number of rebels, since 
become Radicals. But it is time all were 
pardoned ! 

Among the many strange posit:ions assumed 
by the prosecution are : 1. The President has 
no right to inquire into and act upon his con- 
clusion that the civil-oilice-tenure act, or any 
other act of Congress, is unconstitutional. 2. 
That it was his duty to execute that act with- 
out any question of its constitutionality. 3. 
That this court of impeachment has no right 
or power to inquire into the constitutionality 
of that act. 

The latter position is so palpably and flagi- 
tiously unsound as to deserve no other answer 
than a simple denial. Tiie others are entitled 
to some consideration, though they are nega- 
tived by the Constitution itself, to prove which 
1 will quote from it : 

"This Constitution niul the laws of the United 
States which shall be m;ule in pii]-sunin:elhcrrof" * 
* ■'■■ * "shall be the sui)remo law of tiie land; 
and thejudgesin every State.shall be bound thereby, 
anything in tfic eonstitutions or laws of any State to 
the contrary notwiliistiuiilinff." 

"Tlie Senators and Reruesentatives before men- 
tioned, and the members of the several State Legis- 
la.iuies, and all executive and judicial officers, both 
of the United States and of the several States, shall 
be bound by oath or aliirraatio;i to support this Con- 
stitution." 

"The President, before he enter on the execution 



of his oflicc, shall take the following oath or affirm- 
ation : 

"I do solemnly swear (or nffirm) that I will faith- 
fully execute the office of President of the United 
States, and will to the best of my .ability preserve, 
protect, and defend the Constitution of the United 
States." 

Tlie plain sequences of these provisions of 
the Constitution are some very important prin- 
ciples : 

1. The Constitution is the paramount law 
of the land throughout the United States. 

2. Every constitution and law of the States 
and every act of Congress, so far as they may 
be inconsistent with the Constitution of the 
United States, fall before its predominant au- 
thority and force, and from their origin are 
void and of no effect. 

3. While it is the right of every citizen to 
oppose unconstitutional acts of Congress by 
every proper means, it is the especiiil duty of 
the President to make that resistance, as the 
chief executive officer of the Government, who 
has taken an official oath before entering on 
the execution of his office that he will faith- 
fully execute the office of President of the 
United States, and will to the best of his ability 
preserve, protect, and defend the Constitution 
of the United States. He has no more im- 
portant duty to perform, and none more oblig- 
atory upon him, than to preserve, protect, and 
defend the Constitution against all assailants, 
against Congress, and all comers. In doing 
this, he is not to make war, or any civil con- 
vulsion; but he is to resort to every appropriate 
means with which the Constitution and the laws 
have intrusted him; and none could be more 
fit than his removal of Mr. Stanton from office, 
with the purpose of making a case for the Su- 
preme Court, in which the constitutionality 
of the civil-office-tenure bill should be decided 
by the tribunal appointed by the Ccmstitution 
for the final judgment of all such questions. 

The right of each department of the Gov- 
ernment to interpret and construe the Constitu- 
tion for itself, and by it to determine the valid- 
ity of all acts of Congress, within the scope of 
the performance of their respective functions 
in the Government as to all questions not ad- 
judged by the Supreme Court, has heretofore 
been a generally received principle, and lias 
always been acted upon in the administiation 
of the Government. That a President was 
bound to execute an unconstitutional act of 
Congress without any question, until it was so 
decided by the Supreme Court, and by taking 
steps to have it subjected to that test, commit- 
ted an impeachable crime, is one of the absurd 
and mischievous heresies of this day. 

In relation to this matter Mr. Madison so 
clearly expresses the true princii>les of tin; 
Constitution that I will dismiss it with a quo- 
tation from him, with the remark that the 
principles which he expresses have always 
been generally held by all the statesmen, courts, 
and jurists of America. Madison Pai)ers, vol- 
ume four, page 394, dated in 1834, says : 
"As the legislative, executive, and judicial depart- 



16 



ments of the United States are coordinate, and each 
equally bound to support the Constitution, it follows 
that each must, in the exercise of its functions, be 
puiiied by the text of the Constitution accordins to 
Its own interpretation of it; and consequently that 
in the event of irreconcilable interpretations the 
jirevalcnce of the one or tiie other department must 
depend on the nature of the case as receivinfr the 
final decision from one or the other, and passing from 
that decision into effect without involving the func- 
tions of any other. 

"But notwithsjandins this abstract view of the 
coordinate and independent risht of the three de- 
partments to expound the Constitution, the judicial 
department most familiarizes to the public atten- 
tion as the expositor, by the order of its functions in 
relation to the other departments, and attracts 
mnst the public confidence by the composition of the 
tribunal. 

"In the judicial department, in which constitu- 
tionality as well as legality generally find their ulti- 
mate discussion and operative decision; and the 
l)ublic deference to and confidence in the judgment 
of that body are peculiarly inspired by the qualities 
implied in its members and by the gravity and de- 
liberation of their prc>ceedings, and by the advantage 
their plurality gives them over the unity of the 
executive department, and their firmness over the 
multitudinous composition of the legislative depart- 
ment. 

'■ Without losing sight, therefore, of the coordinate 
relations of the three departments to each other, it 
may always be expected that the judicial bench, 
when happily filled, will, for the reasons suggested, 
most engage the respect and reliance of the public 
as the surest expositor of the Constitution, as well 
in questions within its cognizance concerning the 
boundaries between the several departments of the 
Government as in those between the Union and its 
members." 

Mr. Chief Justice, I believe these proposi- 
tions to be true : 

1. The power of removal from office is an 
executive power, and is vested by the Constitu- 
tion in the President solely ; and, consequently, 
that so much of the act to regulate the tenure 
of certain civil ofHces as proposes to restrict 
the President' s exercise of that power, is uncon- 
stitutional and void. 

2. That the case of Edwin M. Stanton, Sec- 
retary of War, does not come within the opera- 
tion of that act, and it presented no obstruc- 



tion to his removal by the President if consti- 
tutional. 

3. That the removal of Stanton produced a 
vacancy in the office of Secretary of the De- 
partment of War, which the President was 
authorized by the laws of Conj^ress to supply 
for six months, by the designation of any per- 
son to perforin its duties for that period. 

4. That there is no evidence that the Presi- 
dentviolated, or attempted to violate the "act 
to define and punish certain conspiracies," the 
act which directs "all orders and instructions 
relating to military operations by the Presi- 
dent or Secretary of War to be issued through 
tlie General of the Army, and in case of his 
inability through the next in rank," or the act 
" to provide for the more efficient government 
of the rebel States." And, moreover, I be- 
lieve the two acts last referred to were in con- 
flict with the Constitution and void and of no 
effect. 

5. I believe the President has the same free- 
dom of speech which the Constitution guaran- 
tees to every American citizen; and if he had 
not, he has been guilty of no such abuse of it, 
as to constitute an impeachable offense. 

Upon these propositions, the truth of which 
I do not doubt, I conclude that there is no 
ground whatever for the impeachment of the 
President, and pronounce my opinion that all 
the articles be dismissed. 

In conclusion, I will express condemnation 
of the harsh spirit and flagrant violations of 
decorum with which this case has been prose- 
cuted in court; and especially of the violent 
and unjustifiable denunciations and oppro- 
brious epithets with which some of the Man- 
agers have indulged themselves toward the 
respondent. Such exhibitions certainly do not 
commend proceedings by impeachment before 
the Senate of the United States to the respect 
and high consideration of our countrymen or 
the world. 



Printed at the Congressional Globe OfBce. 



W*'98 83 



^ 

^ 



^x 









►^.•.l::^* 






0? *C 






^** .^^' ^^^. ••jgi^.* >^ "^^^ . %^J%^/ .J 








<v*'--* A^'*' V*^?!^*<^ <^*'- 



















^°*t. . 



V V- 









^V "^ 



♦^ 




v^^\/ \'^''y \^^\/ ^-^^^z 

r. ^. .^^\^;4-i:-X .A:iiiL%"^^ ..^''.t^-i'.^-^. .^'^^:r;i 







J" .% 






.♦ 



0^ <P^ '^ .". • 



•^^ 









^°^^^ 




























